P L D 1957 (W (PLP)

(1) In view of express agreement between the parties that the wife will be entitled to claim maintenance at the rate of Rs. 27 per mensem she had do right to apply under section 488, Criminal P. C. (2) The learned Magistrate did not advance any reason for fixing maintenance at the rate of Rs. 50 instead of stipulated amount. (3) No definite finding about the husband's monthly income was given, though evidence was produced by the parties. Without that finding, maintenance should not have been fixed at an apparently high rate. (4) The woman was divorced by another man before she married the petitioner and the parties come from ordinary trading class. In view of these points the order passed by the learned Magistrate cannot be treated as valid and should be set aside. A. R. CHANGEZ, J.‑

This is a reference under section 438 of the Code of Criminal Procedure by the Additional Sessions Judge, Lahore, whereby he has recommended that the order passed by Khan Muhammad Shafi Khan, Magistrate, 1st Class, Qasur, directing Muhammad Amin tea pay Rs. 50 per mensem as maintenance tinder section 438 of the Code of Criminal Procedure to his wife, Mst. Mumtaz Begum, should be set aside. The facts giving rise to this reference are that Mst. Mumtaz Begum was at first married to Hafiz Bashir and bore him two children. She was divorced by him and then she was married to Muhammad Amin who executed an agree ment in her favour that in case she lived separately from him he would pay Rs. 27 per mensem as maintenance to her. They lived happily for about six months and then their relations became strained. It is alleged by Mst. Mumtaz Begum that her husband developed illicit intimacy with another woman and when she remonstrated with him, she was maltreated and was at last turned out from the house. She made attempts at reconciliation, but he refused to keep and maintain her. A daughter was also born to her from Muhammad Amin. She then filed an application on the 17th of April 1952, under sect‑ion 488 of the Code of Criminal Procedure for the grant of a monthly allowance as maintenance. The learned Magistrate, after recording the evidence of the parties, came to the conclusion that Muhammad Amir had neglected and refused to maintain her and his offer in Court to maintain her was not made in good faith. He accordingly directed Muhammad Amin to pay Rs. 50 per mensem as maintenance to his wife with effect from the date of her application. On a revision petition filed by the husband, the learned Additional Sessions judge has referred the case to this Court for setting aside the order in question. The main ground taken up by the learned Additional Sessions judge is that there being an express agreement between the parties which provides maintenance at the rate of Rs. 27 per mensem, the jurisdiction of the Criminal Court to grant maintenance under section 488 of the Code of Criminal Procedure was ousted. I do not agree with this view. Section 488 of the Code of Criminal Procedure provides for a speedy remedy and the foundation for the exercise of jurisdiction under this section is "neglect or refusal" to maintain. As soon as a wife satisfies a Magistrate empowered to take action under this section that her husband having sufficient means has neglected or refused to maintain her, she is entitled to an order under this section unless the husband is able to establish circum stances enumerated in the section which disentitle her to an order for maintenance. An agreement executed by the husband in favour of his wife providing a maintenance allowance does not debar the wife from applying under section 488 of the Code of Criminal Procedure and the statutory right guaranteed by the law cannot be denied to her merely on that score, provided she is able to satisfy the con ditions laid down in the section. The Court's jurisdiction cannot be ousted by such an agreement. There is no decision of our High Court on the precise point involved in this reference. However, I have been able to find out a ruling of the Calcutta High Court which specifi cally deals with this question. It was held by Mitter J. in Saraswati Debi v. Narayan Das Chatterjee (A I R 1932 Cal. 698) that a mere existence of an agreement providing maintenance to the wife which is not acted upon does not oust the jurisdiction of Criminal Courts. In that case, there was an agreement between husband and wife which provided a maintenance of Rs. 7 per month to the wife. It was contended on behalf of the husband that on account of this agreement between the parties, the jurisdiction of the Criminal Court was ousted and the agreement was enforceable in a Civil Court. Repelling this contention, the learned Judge made the observa tions quoted above and I respectfully agree with those observations. Learned counsel for Muhammad Amin has not been able to cite any authority to the contrary. Counsel for Mst. Mumtaz Begum has. however, invited my attention to the case reported as In re Taralakshmi Manuprasad (A I R 1938 Bom. 499). That case does not directly deal with the point involved, but is otherwise illuminating and throws considerable light oil the question of jurisdiction of Criminal Courts in such matters. Beaumont C. J. while delivering the judgment of the Division Bench in that case observed that the existence of even a decree for maintenance passed by a Civil Court does not oust the jurisdiction of a Magistrate in a proper case to make an order under section 488 of the Code of Criminal Procedure. The facts of the case were that the wife had obtained a decree from the Civil Court which provided that the husband should pay Rs. 15 a month for maintenance of the wife and Rs. 5 a month for maintenance of the daughter. The husband failed to pay the maintenance in accordance with the terms of the decree. The wife applied under section 488 of the Code of Criminal Procedure, but the Magistrate held that the decree of the Civil Court directing maintenance ousted his jurisdic tion. When the matter came up for decision before the High Court, it was held by the Division Bench that the jurisdiction of the Magistrate was not ousted and the case was sent back to the Magistrate to be dealt with on merits. The view taken by the Bombay High Court appears to be in consonance with the spirit of section 488 of the Code of Criminal Procedure. If in spite of the decree the husband fails to pay maintenance, the wife can certainly ask for a speedy remedy by applying, to a Magistrate under section 488 of the Code of Criminal Procedure. An agreement by the husband to pay maintenance to his wife is no proof of the fact that he has not neglected or refused to maintain his wife and does not deprive the wife of her statutory right to apply under section 488 of the Code of Criminal Procedure. For the aforesaid reasons I hold that the mere existence of an agreement by the husband to provide maintenance to his wife does not oust the jurisdiction of the Criminal Court to grant maintenance to the wife under section 488 of the Code of Criminal Procedure. Some other minor points have also been raised by the learned Additional Sessions judge in this reference. Their decision depends upon the appreciation of evidence which has been properly considered and adjudicated upon by the learned Magistrate It was conceded before me by the learned counsel for Muhammad Amin that the suit filed by his client for the restitution of conjugal rights against Mst. Mumtaz Begum has been dismissed and he has also failed in his appeal and revision petition. It appears that he has also taken another wife. In fixing the amount of maintenance although the learned Magistrate has not given any definite finding as regards the income of the husband, but in the light of the evidence on the record he has taken into consideration his financial position and status. It is not denied that he deals in oils and perfumery. Out of the amount fixed, Mst. Mumtaz Begum will have to spend some amount on the maintenance of her daughter for whom no separate order has been passed. Having regard to the prevalent high prices of all the commodities, the amount fixed will hardly be sufficient for the bare necessities of life. Under the circumstances no interference in the exercise of revisional jurisdiction is called for and I accordingly reject this reference. Before parting with this judgment, I would like to observe that although section 488 of the Code of Criminal Procedure provides for a speedy remedy so that the wife or the child may not starve, yet it took more than three years and eight months to decide this application, and it reflects no credit on the officials concerned who dealt with this application in such a leisurely manner. Z.A.S./A.H. Recommendation not accepted.